The doctrine of promissory fraud holds that a contractual promise implicitly represents an intent to perform. A promisor's conditional intent to perform poses a problem for that doctrine. It is clear that some undisclosed conditions on the promisor's intent should result in liability for promissory fraud. Yet no promisor intends to perform come what may, so there is a sense in which all promisors conditionally intend to perform.

Building on Michael Bratman's planning theory of intentions, this article provides a theoretical account of the distinction between “foreground” and “background” conditions on intentions in general and then explains why foreground conditions on a promisor's intent to perform are likely to result in material promissory misrepresentation, while background conditions are not. The difference between foreground and background conditions lies in whether the agent accepts the satisfaction of the condition for the purposes of her practical reasoning. A promisor's nonacceptance of a condition on her intent to perform is material because it is likely to affect her preperformance deliberations and investment in the transaction, as well as her willingness to seek agreement with the promisee on how to fill contractual gaps.

You and I are neighbors, with our houses situated closely together. You lead a group of rock musicians who can practice only in the evenings in your backyard; while I, on the other hand, enjoy nothing more than quiet evenings spent on my porch accompanied by the sounds of frogs and crickets. Presumably, you have a right to pursue your musical career, and I have a right quietly to enjoy my property. If we do indeed have these rights, however, then they seem to conflict with each other, in that your exercising your right is incompatible with my exercising mine.

According to legal conventionalism, a legal system cannot come into existence and be sustained over time unless legal officials see themselves as working together with their fellow participants in the practice of law for the purpose of achieving coordination or alternatively realizing a joint endeavor. This thesis has traditionally been thought to support a positivist understanding of law. The paper challenges this piece of common wisdom. It aims to establish that the idea of cooperation among legal officials that figures so prominently in conventionalist accounts of law may in a suitable form be appropriated by a robust version of natural-law theory. It claims that participants in the practice of law may be understood as having reasons of political morality to heed the acts and decisions of their fellow participants and calibrate their own behavior accordingly. It takes the value of democracy to illustrate the point. Democracy furnishes a reason for courts to give effect to democratically reached decisions rather than work out on their own how best to adjudicate disputes before them.

This essay concerns Scott Shapiro's criticism that H.L.A. Hart's theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro's criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro's planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro's criticism of Hart, as it stands, is incomplete. Careful attention to Hart's notion of the internal point of view indicates that he was aware that legal justification ends with abstract objects, not practices, and that he offered his own explanation of this phenomenon.

The criminal law presently distinguishes between actions and omissions, and only rarely proscribes failures to avert consequences that it would be an offense to bring about. Why? In recent years it has been persuasively argued by both Glover and Bennett that, celeris paribus, omissions to prevent a harm are just as culpable as are actions which bring that harm about. On the other hand, and acknowledging that hitherto “lawyers have not been very successful in finding a rationale for it,” Tony Honoré has sought to defend the law's differential treatment. He proposes a “distinct-duties theory” that in addition to the general duties we owe to everyone (e.g., not to inflict harm), we also owe distinct duties to a more limited collection of people and associations, specified by features of our relationship with them (we owe, for instance, duties as parents to our own children). Where a distinct duty holds, breach by omission may well be no better than breach by positive action. But absent a distinct duty, omissions, per Honoré, are less culpable. They are mere failures to intervene and improve or rectify things, whereas actions are positive interventions which make things worse. And, thus, the law has good reason to differentiate between them.

This paper seeks to elucidate the role played by the common good in John Finnis's arguments for a generic and presumptive moral obligation to obey the law.1 Finnis's appeal to the common good constitutes a direct challenge to liberal and philosophical anarchist denials of a generic and presumptive obligation to obey the law.2 It is questionable, however, whether Finnis has presented the strongest possible case for his position. In the first section I outline Finnis's account of the relationship between basic goods, the common good, and the authority of law. Section II demonstrates how Finnis's emphasis upon the instrumental nature of the common good leaves his position vulnerable to Joseph Raz's objections3 that not all cases of law make a moral difference and that governmental authority is often unnecessary to resolve coordination problems. I argue that Raz's critique nonetheless fails adequately to address an alternative defense of the existence of a generic and presumptive obligation to obey the law, suggested by some passages in Finnis's work, according to which the common good is integral, rather than merely instrumental, to the good of individuals. In the final section I consider whether Finnis could strengthen his case for a generic and presumptive obligation to obey the law by adopting a more consistently robust—and hence also more contentious—account of the common good.

This paper offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law: Does the rule of law include only formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? By focusing on the nature of common-law reasoning, I wish to question the form/substance dichotomy that frames this debate and to show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common-law reasoning and as such play a large role in shaping the substantive content of common-law property rights. Understanding this has implications beyond the relationship between property law and the rule of law.

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned.

According to the legal rationalist, the law claims to give its subjects reasons for action. The leading legal rationalist, Joseph Raz, says, “the law claims that the existence of legal rules is a reason for conforming behaviour.” Putting the same point more casually, he writes:

Consider the following examples of behavior by Smith:

1. Smith, seated at her restaurant table, gives an order to the waiter;

2. Smith gets into a cab and names a destination;

3. Smith agrees to Jones's suggestion that they go back to Jones's apartment for a few drinks;

4. Smith casts her vote in some election.

In each of these instances what can Smith be understood as consenting to? Is she consenting to (1) pay the bill for whatever meal she orders; (2) pay the fare for the journey to her named destination; (3) sexual intimacy with Jones; and (4) accept the authority of whatever individual or political part is elected? The fact that Smith does not actually express her consent to each of these states of affairs or outcomes need not mean that she is not giving her consent to them. The idea that individuals can give their consent in ways other than by means of a formal verbal expression of agreement is a familiar, if controversial, one.

In recent years, American tort law has been the beneficiary of a growing effort by sophisticated legal theorists to advance a theory that both descriptively and normatively accounts for its doctrines on non-utilitarian grounds.See, e.g., the rich set of essays recently compiled by David Owen upon which I shall draw extensively in this piece. PHILOSOPHICAL FOUNDATIONSOF TORT LAW (David G. Owen ed., Clarendon Press, 1995) (hereinafter PHILOSOPHICAL FOUNDATIONS). Yet despite the formidable challenges that this literature has posed for the economic analyses that have dominated tort law theorizing in recent decades, central tort doctrines persist in defying efforts to describe and defend them as vehicles for redressing rights violations. In saying this, I do not mean to refer to such obvious things as the fact that the Hand Formula“[I]f the probability [of a foreseeable plaintiff’s injury] be called P; the injury, L; and the burden [of precautions necessary to avert L], B; liability depends upon whether B is less than L multiplied by P: i.e., whether B [is less than ] PL.” United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). appears to allow rights violations in the name of utility or wealth maximization (although corrective justice theorists must admit that the fact that the Hand Formula dominates contemporary characterizations of negligence is a painful theoretical thorn in their sidesFor a denial of the prominence of economic analysis in doctrinal explanation, see Richard W. Wright, The Standards of Care in Negligence Law,in PHILOSOPHICAL FOUNDATIONS, 249–75, 250. For a deontological account of tort law’s use of the Hand Formula, see Heidi M. Hurd, The Deontology of Negligence, 76 B. U. L. REV. 249–72 (1996).). Rather, I have in mind the more subtle but more significant fact that myriad tort doctrines reflect the fundamental thesis that persons have obligations to (re-)structure their conduct so as to mitigate the harms caused by others’ foreseeable wrongdoing—obligations which, when violated, properly serve as a basis for declaring such persons negligent.

2018 marked the centenary of Wesley Hohfeld's untimely passing. Curiously, in recent years quite a few legal historians and philosophers have identified him as a Legal Realist. This article argues that Hohfeld was no such thing, that his work need not be understood in such lights either, and that he in fact made a smaller contribution to jurisprudence than is generally believed. He has nothing to do with theories of official decision-making that identify, among other things, “extra-legal” factors as the real drivers of judicial decision-making, nor must his schema of jural relations advance a “Realist” political agenda. Distinguishing Hohfeld from the Realists will help to correct some misunderstandings about his work and point to its utility in many more contexts than a Realist reading of it allows.

In this paper I critically examine Michael Moore's views about responsibility in overdetermination cases. Moore argues for an asymmetrical view concerning actions and omissions: whereas our actions can make us responsible in overdetermination cases, our omissions cannot. Moore argues for this view on the basis of a causal claim: actions can be causes but omissions cannot. I suggest that we should reject Moore's views about responsibility and overdetermination. I argue, in particular, that our omissions (just like our actions) can make us responsible in overdetermination cases. I go on to provide an account of how this may be possible.

The fundamental tenet of the liberal conception of free speech is the principle of content neutrality, which Mill espoused in claiming that “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.”1. J.S. MILL, ON LIBERTY 36, n. 1 (John Gray and G.W. Smith eds., Routledge 1991) (1859). Note that content-neutrality as a principle of free speech is a different and less ambitious principle from neutrality among conceptions of the good. On this view, the immorality, the falsity, and even the harmfulness of an opinion are not good reasons to censor it. “However positive any one’s persuasion may be, not only of the falsity but of the pernicious consequences” of an opinion, Mill writes, its expression cannot legitimately be prohibited.2. Id. at 43. I am claiming that Mill does not consider harm prevention per se to be even a good (much less a sufficient) reason to censor an opinion or sentiment. This claim is admittedly in tension with some glosses of the so-called harm principle; but, as I have argued elsewhere, the role and content of Mill’s principle of liberty is often fundamentally misconstrued. See Daniel Jacobson, Mill on Liberty, Speech, and the Free Society, 29 PHIL. & PUB. AFF. 276 (2000). Nevertheless, in certain limited circumstances, particular acts of assertion or expression must “lose their immunity” from interference, as Mill puts it, so that we may proscribe incitement to riot, harassment, and the like. Just how to specify those circumstances consistently with content neutrality is a challenge for the liberal program. Of course, this principle and the liberal conception of free speech it embodies are controversial. It can be questioned whether the principle succeeds in protecting the class of speech and other expression that liberals aspire to protect. And even if it does cover the right class, the principle’s justification can be doubted. But I will not discuss these issues, on which there is already an immense literature, any further here.

This article explores the nature and role of legal powers in private law. I show how powers are special in that they allow agents to change their (and others’) legal circumstances merely by communicating an intention to do so, without having also to change the nonnormative facts of the world. This feature of powers is, I argue, particularly salient in private law, with its correlative or bipolar normative structure; understanding powers and their role in private law thus requires careful attention to this correlativity. In the final section, I argue that the correct explanation of a variety of substantive problems in private law, many having to do with the role of a party's intention, turns on correctly understanding legal powers.

Modern theorists often use Immanuel Kant's work to defend the normative primacy of human rights and the necessity of institutionally autonomous forms of global governance. However, properly understood, his law of nations describes a loose and noncoercive confederation of republican states. In this way, Kant steers a course between earlier natural lawyers such as Grotius, who defended just-war theory, and visions of a global unitary or federal state. This substantively mundane claim should not obscure a more profound contribution to the science of international law. Kant demonstrates that his concept of law forms part of a logical framework by which to ascertain the necessary institutional characteristics of the international legal order. Specifically, his view is that the international legal order can only take a noncoercive confederated form as its subjects become republican states and that in these circumstances law can exist without a global state. Put another way, Kant argues that if we get state-building right, the law of nations follows.

Debates about our moral relation to the law typically focus on the moral force of law. Often, the question asked is: Do we have a moral duty to follow the law? Recently, that question has been given a virtue-ethical formulation: Is there a virtue in abiding by the law? This paper considers our moral relation to the law in terms of virtue but focuses on a different question from the traditional ones. The question here is: Can the law model virtue in beneficial ways that enable us to cultivate virtue? This paper shows that the law can do this by setting a moral example that we have good reason to emulate. This is significant given the distinctive influence the law has over our lives. The paper begins by examining the nature of a model, comparing different models of virtue, and then questions the possibility of a complete model of virtue such as the so-called Virtuous Person. The paper then articulates several ways in which the law can model virtue for us and responds to three objections: 1) the embodiment problem, 2) the poisoning problem, and 3) the emulation problem.

In a recent paper Christopher Heath Wellman argues that—with some important qualifications—there are no procedural rights. And it's not as if he is squeamish about his examples: even someone who is “convicted” and “punished” by lottery is not wronged—their rights are not violated—if in fact they are guilty of the relevant crime. I respond, rejecting Wellman's conclusion and argument. I also show how the discussion has important wider implications.

I. INTRODUCTION

Stanley Fish says that theory does not exist, and because it does not exist, it has no consequences. This is doubly disturbing for someone who thinks of himself or herself as a legal theorist. While it is one thing to be dismissed as an impractical ivory tower type, out of touch with the real world of practice, it is quite another to be told that you do not exist at all. If legal theory does not exist, what have I been doing these past years? Indeed, what is it that Fish himself has been up to in his many books and articles devoted to jurisprudential issues?Most of his law-related writings have been collected in Stanley Fish, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES (Duke University Press, 1989); Stanley Fish, THERE’S NO SUCH THING AS FREE SPEECH . . . AND IT’S A GOOD THING, TOO (Oxford University Press, 1994); and Stanley Fish, THE TROUBLE WITH PRINCIPLE (Harvard University Press, 1999). Moreover, simply existing is not the limit of a legal theorist’s ambition. We want what we do to have significance, and Fish’s claim that theory has no consequences denies us that status.

The concept of “difference” forms the core of contemporary attacks on “liberal legalism” and is central to proposals for replacing it. Critics charge that liberal law quashes difference because it grounds political equality and individual rights in the assumption that all persons share certain “samenesses,” such as rationality or autonomy. In the words of the philosopher Iris Marion Young, “liberal individualism denies difference by positing the self as a solid, self-sufficient unity, not defined by or in need of anything or anyone other than itself.” The claim is that this “sameness”-based vision of equality is in fact an exercise of power, reflecting a highly specific model of personhood that was constructed by and for a white male elite and ensures its continued social dominance. Liberalism's critics conclude that the achievement of social justice will be possible only when sameness-based conceptions of equality are rejected.